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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached decision of the Administrative Law
Judge. The General Counsel and the Charging Party filed oppositions to the
exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the Statute)
by refusing to negotiate over a decision to eliminate the availability of
General Services Administration (GSA) vehicles to revenue officers for
transportation to perform their work. The Judge found that the Respondent
violated section 7116(a)(1) and (5) of the Statute, as alleged. The Judge found
it unnecessary to determine whether certain proposals made by the Union were
negotiable because the complaint allegations did not address that issue.

Pursuant to section 2423.29 of our Rules and Regulations and section
7118 of the Statute, we have reviewed the rulings of the Judge made at the
hearing and find that no prejudicial error was committed. We affirm the
rulings. Upon consideration of the Judge's decision and the entire record, we
adopt the Judge's findings, conclusions and recommendations only to the extent
consistent with this decision. For the reasons set forth below, we find that
the General Counsel has not established that there was a change in the
condition of employment at issue. Therefore, we shall dismiss the
complaint.

II. Background

The Charging Party, National Treasury Employees Union (NTEU), is the
exclusive representative of the revenue officers employed by the Respondent,
Louisville District, Internal Revenue Service. Chapter 25 is the local unit of
NTEU operating in the Louisville District. For over 20 years, the Respondent
has assigned cars it obtained from the GSA to some of its revenue officers. The
cars are used in making tax collections at various places where taxpayers'
assets might be found. In January 1989 approximately 17 of the 90 revenue
officers assigned to the Respondent had GSA cars. GSA's Federal Property
Management Regulations suggest, as a "utilization guideline" agencies may use
in determining whether a full-time passenger car assignment is necessary, that
the assignee should drive the car at least 12,000 miles a year. 41 C.F.R.
§ 101-39.301.(1)

Michael Clark became Collection Field Branch Chief for the Louisville
District on January 2, 1989. Almost immediately, it was brought to his
attention that a number of the 17 assigned GSA cars were being driven less than
12,000 miles per year. Clark conducted a review of the mileage accumulated over
the past year and determined that nine of the cars were underutilized. He
decided to return these cars to GSA, and notified the Union of his decision. At
the hearing, Clark was unable to answer how many miles a year the cars had
traveled prior to his decision, and he stated that he was unable to recall,
without his paperwork, the details of what led him to conclude that the cars
were being driven less than 1,000 miles per month or 12,000 miles per year.
Transcript at 49.

Revenue officer Larry Tompkins, president of Chapter 25, asked to
bargain over the decision to remove the cars, and also submitted some specific
proposals addressing the issue. Clark scheduled a meeting for February 17,
1990, to brief Chapter 25 on the situation. At the meeting, Clark told Tompkins
that GSA guidelines "required" that car assignments be rescinded from revenue
officers who did not meet the 12,000-mile minimum. ALJ Decision at 3. Clark
expressed the Respondent's position that withdrawing the cars did not change a
condition of employment and was not negotiable. Clark showed Tompkins a memo
containing the license numbers of nine cars that would be taken back because
they did not meet the "utilization guidelines." Id. Ultimately, seven of
the nine were returned to GSA. Officers whose cars were taken back were
expected to use their own cars for Government business, with reimbursement
according to the mileage reimbursement rate established by GSA.

III. Administrative Law Judge's Decision

The Judge found that providing the cars was a condition of employment,
and that the decision to discontinue the assignment of cars to seven officers
was a change in that condition of employment. He found further that the Union
had not waived its right to bargain over the change, either by statements made
by its local Union president or by provisions of the parties' collective
bargaining agreement. Finally, the Judge found it unnecessary to pass on the
negotiability of proposals made by the Union in response to the Respondent's
action.

The Judge based his finding that the system of assigning cars was a
condition of employment on Authority precedent. Citing National Treasury
Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs
Service, 21 FLRA 1116, 1122 (1986), he noted that the Authority has found
negotiable the subject of providing employees with a government vehicle, to the
extent that the proposal involves the transportation of employees who are
required to travel from one work site to another but is otherwise unrelated to
the performance of the agency's work. Therefore, he concluded that there would
be a duty to bargain over any decision to change the Respondent's system of
assigning cars.

The Judge's determination that withdrawal of the assigned cars from
seven officers constituted a change in a condition of employment was based on
his finding that assignment of cars had not been contingent on the mileage
guideline in the past. He noted that "the record is not as fully fleshed out as
one might hope for," observing further that:

the General Counsel rested on a bare set of facts that establishes a
longstanding practice of assigning GSA cars and that clearly supports the
inference that before January 1989 Louisville District permitted employees who
had been assigned GSA cars to retain those cars without regard to the
12,000-mile guideline.

ALJ Decision at 7.

After analyzing the requirements of the burden of proof necessary for
the General Counsel to establish a primafacie case, the Judge
concluded that:

[a]ssuming . . . it is necessary for the record to show affirmatively
that Louisville District's relevant past practice did not make continued
assignment of GSA cars contingent on the mileage guideline, I infer so from the
whole record. I do this without any great degree of certainty. Nor am I
necessarily convinced that the reasons behind this inference . . . would
support any burden of persuasion more demanding than that of preponderance. I
simply conclude that the existence of this set of facts is more probable than
its nonexistence.

Id. at 8.

The Judge found that the practice in effect when Clark took over
permitted officers who had been assigned GSA cars to retain the cars without
respect to the 12,000-mile guideline. Applying the requirements for the
establishment of conditions of employment by past practice, as set out in
Norfolk Naval Shipyard, 25 FLRA 277, 286 (1987), the Judge found that
the practice had been exercised consistently for an extended period of time
with management's knowledge and consent.

As to the Respondent's arguments that the Union was estopped from
asserting that a bargaining obligation arose, the Judge declined to rely on a
statement allegedly made by the local Union president that the matter was not
negotiable, and further held that the parties' negotiated agreement did not
constitute a clear and unmistakable waiver of the Union's right to bargain. The
Judge also rejected, based on Authority precedent, the Respondent's argument
that no obligation to bargain arises until a union submits a negotiable
proposal regarding such a change.

Finally, the Judge declined to review the negotiability of Union
proposals made in connection with the request to bargain. The Judge recognized
that in one case the Authority made a negotiability determination regarding a
proposal even though the resolution of the negotiability dispute was not
necessary to determine whether an unfair labor practice had been committed.
U.S. Department of Health and Human Services, Social Security
Administration, Baltimore, Maryland and Social Security Administration,
Fitchburg, Massachusetts District Office, Fitchburg, Massachusetts, 36 FLRA
655 (1990) (Fitchburg). The Judge noted that in Fitchburg, in
contrast to this case, the parties had both addressed the negotiability issues
before the Judge, who viewed a negotiability determination as a necessary
predicate to deciding the unfair labor practice issue. In this case, where none
of the parties argued that a determination of the negotiability issues was
necessary to decide the unfair labor practice issue and where the complaint did
not allege the failure to bargain over the proposals as an additional unfair
labor practice, the Judge concluded that he had no jurisdiction to resolve the
negotiability issues.

IV. Positions of the Parties

The Respondent excepts to the Judge's finding that continued use of GSA
cars without regard to the 12,000-mile standard set forth in the utilization
guidelines was a condition of employment and that there was a change in that
condition of employment. The Respondent argues, among other things, that it did
not have the authority to establish the use of government-owned vehicles as a
condition of employment in a manner inconsistent with the utilization
guidelines. It also argues that the General Counsel did not establish the
existence of a past practice granting continued use of the cars without regard
to the 12,000-mile guideline or the parties' collective bargaining agreement.
The Respondent further contends that the Judge's determination that a past
practice was established was based on speculation and is unsupported by the
record. In sum, the Respondent argues that there is no evidence that the
utilization guidelines were ignored in the past, and, further, that as far as
the record shows, the cars were withdrawn according to established standards.
Thus, the Respondent asserts that its decision to withdraw the cars was
consistent with its established practice of basing car assignments on the
12,000-mile standard set forth in the utilization guidelines.

The Respondent also excepted to the Judge's refusal to review the
negotiability proposals made by the Union.

The General Counsel and the Charging Party each filed an opposition to
the Respondent's exceptions, supporting the findings of the Judge.

V. Analysis and Conclusions

In finding that the Respondent violated the Statute by unilaterally
changing the system of assigning cars, the Judge concluded that the record is
sufficient to support a finding that the Respondent's past practice was to
allow continued use of the GSA cars without regard to the mileage standard in
the guidelines. While we agree with the Judge, for the reasons he stated, that
the Respondent had the authority to establish a condition of employment in the
use of government-owned vehicles, we do not agree that the record supports a
finding of a past practice of allowing continued use of cars without regard to
the mileage standard.

The record shows, as alleged, that the cars were withdrawn from
officers who were driving them less than 12,000 miles per year. The Judge found
that the system of assignment of cars was a condition of employment in the
circumstances of this case. For the purposes of this case, we assume, without
deciding, that this condition of employment is a mandatory subject of
bargaining. In order to find that the Respondent's action constituted a change
in a condition of employment, it must be established that the Respondent's past
practice had been to permit the continued use of GSA cars by officers
regardless of whether they met the 12,000-mile guideline. To find that a
condition of employment has been established by past practice, as noted by the
Judge, there must be a showing that the practice was consistently exercised for
an extended period of time, with the agency's knowledge and express or implied
consent. Norfolk Naval Shipyard, 25 FLRA at 286.

We cannot find on the record in this case that the Respondent had an
established past practice of permitting the continued use of GSA cars without
regard to the utilization guidelines. Thus, the record does not establish
whether in the past anyone who had driven less than 12,000 miles per year had
been allowed to continue using a GSA car or, on the other hand, whether the use
of a car was discontinued under such circumstances. In fact, due to the paucity
of the record, which the Judge described as "not as fully fleshed out as one
might hope for," ALJ Decision at 7, we cannot tell whether in the past anyone
assigned a car in fact ever drove less than 12,000 miles per year. For example,
the record neither shows mileage figures for drivers, which could have
established some of the facts necessary to determine the past practice, nor
does it contain details of the 12-month survey taken by Clark. Specifically,
there was no evidence bearing on the prior driving history of the drivers of
the seven cars returned to GSA. Finally, there was no testimony to establish
the Respondent's knowledge of long-term car usage that did not meet the
standard set by the utilization guidelines and set forth in the parties'
agreement. In view of the foregoing, we conclude that the General Counsel has
not established that there was a practice of allowing drivers to continue to
use assigned cars regardless of the mileage they drove. Therefore, the General
Counsel has failed to make a primafacie case, and we must
dismiss the complaint.

Finally, we agree with the Judge's conclusion that the negotiability of
proposals made by Chapter 25 was not properly before him.(2) Therefore, we deny the Respondent's exceptions on this
issue.

VI. Order

The complaint is dismissed.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The parties' collective bargaining agreement, which
reiterates in almost identical words an Internal Revenue Service regulation,
provides that employees "who can be expected to drive 12,000 or more miles per
year on official IRS business will be offered a GSA automobile for their use,
subject to availability." ALJ Decision at 6.

2. We do not agree with the Judge's suggestion that
FLRA v. Aberdeen Proving Ground, Department of Army, 108 S. Ct. 1261,
1263 (1988), which dealt solely with the issue of the proper forum for the
determination of compelling need issues, disposes of the issue presented here.
We do agree with the Judge, however, that where a negotiability issue is
neither alleged in the complaint as an unfair labor practice nor argued to the
Judge as essential to the disposition of an unfair labor practice issue, an
administrative law judge has no jurisdiction over the negotiability matter.